Document K6kznvEJknwB3ov531Mp688GQ

ELI R E P OR T Closing Statement Waste Not, Want N ot -- An Instruction for Regulatory Reform? At ELL we have adhered to a centrist approach on the ques tion of regulatory reform, seeing our current system of environmental protection as neither fatally flawed nor beyond improvement. But the question remains where to aim the reform effort. A suggestion: waste recycling activ ity. Why? Because the RCRA program has become increasingly difficult to reconcile with sustainability ideals. There are a number of different takes on what is meant by environmental sustainability, but i like the one that derives from Section 102 of the Na tional Environmental Policy Act: a key goal of today's society is to avoid the irreversible commitment of resources. That, way, tomorrow's needs can also be met. At first blush, RCRA would ap pear to be complementary in thrust, since, it is, after ail, called the Resource Conservation and Recovery Act. But the regulatory system that emerged and has prevailed under the statute has always been preoccupied with guaranteeing proper disposal, and this preoccupation has at times pushed deployable second ary material toward end of life rather than recycling and reuse. This orientation is understandable, given where we started. The initial Na tional Priorities List under Superfund was populated with sites around the country that were the product of chemi cal reclamation activities gone awry. Many of the cases that I litigated back in the 1.980s involved such circum stances. Take U.S. v. Monsanto, which involved the Bluff Road site in South Carolina, That site was envisioned by its operators as a collection and stag ing area for reclamation of organic chemicais. Nearly 1.0,000 drums would make their way to the site, but, as often seemed to be the case in those days, the operators couid not. keep up with the volume of material that they received and were unsuccessful in find ing markets for repurposing the waste. As a result, the drums never left, the containers corroded, and a chemical stew contaminated land and groundwater, resulting in millions of dollars of liability and cleanup. RCRA, with its cradie-to-grave sys tem and stringent requirements for hazardous waste management and dis posal, was in part intended as a " never again" response to scenarios like these, it presumed mismanagement and then applied a belt and suspend ers approach to overcome It. Fast forward to the present. RCRA has largely been successful in reining in industrial chemical waste misman agement. Though Superfund continues to chug along in cleaning up legacy sites, very few new NFL sites have emerged based on behaviors post dating the promulgation of RCRA's regu lations. indeed, the chemical manufac turing and waste management sectors, having labored under RCRA controls for decades now, have largely internalized these controls in their compliance man agement systems. The question now is whether RCRA should be turned more decisively in the direction of resource conservation and recovery -- particularly in view of the emergence of sustainability and smart, materials management, as core objec tives in much of the business com munity. At their root, these objectives are grounded in conservation thinking, focused on designing products with end-of-iife in mind and strong reuse and recycling programs, allowing for an increasingly circular economy. The difficulty is that the RCRA pro gram in its current, form has proven a straight jacket when it comes to recy cling. The flip switches that operate around the questions of whether a ma teria! is a waste and whether a waste Scott Fulton President is hazardous, coupled with the absence of clear statutory authority to develop customized programs for recyciables, drive resource loss rather than reuse. Take, for example, what is happen ing in the retail sector with discarded aerosol cans. By virtue of their propel lant, these hit the trip wire for RCRA ignitability and are treated as hazard ous waste. This waste stream accounts for nearly half of the RCRA-regulated material in the retail sector and drives the status of retail stores as RCRA large-quantity generators. Awkwardly, these same cans, when disposed of by consumers, are treated as household solid waste rather than hazardous. Treated as hazardous waste, the fate of the material is certain -- the vast majority is incinerated. Apart from the enormous cost of this approach, there is a sustainability tragedy -- both the cans and the propellant are recov erable and either recyclable or reus able, the cans for their metal and the propellant as fuel. It seems virtually assured that reharvesting these materi als can be undertaken in an environ mentally protective manner. Can we work, together to find a bet ter path for waste streams like this? To me, that sounds like smart reform, anchored by the sustainability ideal. 64 THE ENVI R ON ME NT A L FORUM Sierra Club v. EPA 18cv3472 NDCA Tier 7 ED 002061 00057073-00001